R v Pahl

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Pahl
Citation:	[2017] ACTSC 68
Hearing Dates:	9 – 10 February 2017
Decision Date:	31 March 2017
Before:	Murrell CJ
Decision:	Defence of mental impairment not established. Verdicts of guilty on all counts.
Catchwords:	CRIMINAL LAW – Statutory defence of mental impairment –Trespass and burglary – Alcohol-induced psychosis – History of alcohol-induced psychotic episodes – Alleged mental vulnerability to alcohol-induced psychosis – Any mental disorder only background feature – Healthy mind – Psychotic episode a reactive condition
Legislation Cited:	Criminal Code Act 1995 (Cth) s 7.3(9) Criminal Code Act 2002 (ACT) ss 15(5), 18(2), 20, 27, 28, 29, 30, 311, 403(1) Legislation Act 2001 (ACT) ss 137, 139, 140, 141, 142, 143 Supreme Court Act 1933 (ACT) s 68B
Cases Cited:	Bouchard-Lebrun v The Queen [2011] 3 RSC 575 Cooper v The Queen [1980] 1 SCR 1149 Project Blue Sky Inc v Australian Broadcasting Commission [1998] HCA 28; 194 CLR 355 R v Barlow (1997) 188 CLR 1 R v Dargin [2008] NSWSC 751 R v Derbin [2000] NSWCCA 361 R v Doolan [2010] NSWSC 147 R v Falconer (1990) 171 CLR 30 R v Fang (No 3) [2017] NSWSC 28 R v Hadfield (1800) 27 St Tr 1281 R v Konidaris [2014] VSC 89 R v M’Naghten (1843) 8 ER 718 R v Martin (No 1) [2005] VSC 518; 159 A Crim R 314 R v Morrison [2006] SASC 344 R v Ham [2009] NSWSC 296 R vRadford (1985) 42 SASR 266; 20 A Crim R 388
Texts Cited:	Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 10 December 2002 Stephen Odgers, Principles of Federal Criminal Law (Lawbook Co., 3^rd ed, 2009)
Parties:	The Queen (Crown) Kevin Pahl (Offender)
Representation:	Counsel Ms S Saikal (Crown) Mr S Whybrow (Offender)
	Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Number(s):	SCC 280 of 2015; SCC 279 of 2015

Murrell CJ

The proceedings

1. Pursuant to s 68B of the Supreme Court Act 1933 (ACT) (SCA), the accused elected in writing to be tried by a judge alone. His legal adviser certified that he had received advice and made the election freely. The election and certificate were filed in accordance with s 68B(1)(c) of the SCA.

2. The accused was charged that on 10 February 2015 he:

(a) Count 1: Entered or remained in a building, 14–16 Brindabella Circuit, Canberra Airport, as a trespasser with intent to commit an offence in the building that is punishable by five years’ imprisonment or longer.

(b) Count 2: Recklessly caused damage to property belonging to Canberra Airport Group Pty Ltd (extensive damage within the building).

(d) Count 4: Recklessly caused damage to property belonging to Transfield Services (Australia) Pty Ltd (a Toyota High Lux utility vehicle).

3. Count 1 alleged burglary, an offence against s 311 of the Criminal Code Act 2002 (ACT) (Criminal Code). Each of Counts 2, 3 and 4 alleged an offence of reckless damage to property, contrary to s 403(1) of the Criminal Code.

4. The accused pleaded not guilty to all counts by reason of mental impairment.

5. I set out my factual findings and the principles of law that I have applied to arrive at the verdicts.

6. In making factual findings, I have relied on the oral evidence and exhibits. I have applied common sense.

General legal principles

7. The charges were heard together as a matter of convenience. I have considered each charge separately.

8. The prosecution had the task of proving each legal element of an offence beyond reasonable doubt. In this case, there was no dispute between the parties that each legal element of each offence was established. Nevertheless, I had to be satisfied that each legal element was proved beyond reasonable doubt.

9. The defence had the task of proving the defence of mental impairment on the balance of probabilities.

Agreed facts supporting the prosecution case

10. The case statement was treated as an agreed statement of facts.

11. In February 2015, the accused was staying at a Queanbeyan motel for the purpose of undertaking work on behalf of his employer, Transfield Services (Australia) Pty Ltd (Transfield). Transfield had provided him with a Toyota Hi Lux utility vehicle, which was leased to Transfield.

12. On 10 February 2015, the accused was suffering from considerable work stress. Recently, he had commenced a demanding six month contract which involved frequent travel away from his family and meant that he worked alone. He had a deadline to meet later that week. On 10 February 2015, he experienced computer problems and could not undertake the urgent work that was required to meet the deadline.

13. For about two years prior to January 2015, the accused did not drink alcohol because, in his view, he had “a very adverse reaction to alcohol” and it made him “manic”. This view was based on a prior experience when the accused had felt unusual feelings and had tried to “escape” from his house, causing damage to the fence.

14. In the lead up to 10 February 2015, the accused felt increasingly anxious. He believed that his anti-anxiety medication was ineffective. He had made an appointment to see his doctor, Dr Van der Merwe, for the purpose of discussing treatment.

15. On 10 February 2015, the accused removed alcohol from the minibar in his motel room. He commenced drinking at about 6:30 pm. When interviewed on 11 February 2015, the accused stated that, between about 6:30 pm and 8:40 pm, he drank four full strength beers, a 700 ml bottle of white wine, and part of a 700 ml bottle of red wine, which he described as “an excessive amount of alcohol”.

16. Later, the accused had little memory of what had occurred between when he commenced drinking and, as he recalled, he was in an office car park near the Canberra Airport. He recalled that, in the car park, he was fearful because he believed that he was being chased. In response, he deployed a fire hydrant to attract attention to his plight and then ran and hid under a work desk. He described the experience as “almost like a manic attack”.

17. Other evidence established that, at 8:55 pm, the accused drove the Transfield utility by a circuitous route to Canberra Airport, arriving at about 9:15 pm. As he drove the vehicle into an airport car park, it impacted with several objects and caused substantial damage to fixtures such as metal bollards and a boom gate. Finally, the accused drove the vehicle into a ticket machine where it became wedged, resulting in significant damage both to the ticket machine (Count 3) and to the vehicle (Count 4).

18. The accused then exited the vehicle and broke into a nearby building at 14–16 Brindabella Circuit (Count 1). A shattered ground floor window and a laceration to the accused’s arm showed the means by which he gained entry. Inside the building, he activated four high flow fire hydrants, one on each level of the building, flooding all four floors of the building. The estimated cost of repairs to the interior of the building was $550 000 (Count 2). The accused did not have permission to enter or remain in the building or to damage property belonging to Canberra Airport Group Pty Ltd or Transfield.

19. When police arrived at the airport building, they found the accused hiding under a workstation desk. He appeared to be heavily intoxicated: his eyes were watery and bloodshot, he smelt strongly of intoxicating liquor and he could not walk unaided. He admitted that he was responsible for activating the fire hydrants. He was arrested.

20. When asked why he had activated the fire hydrants, the accused responded:

In a trance was being chased by three girls and a guy, so I turned on the water ... I think the people chasing me might be Asians.

When asked how he had travelled to the airport, he responded:

Got in my car and looked for an industrial area.

21. The accused was conveyed to the City Watch House. There, he complained of chest pains. He was taken to Canberra Hospital. During the journey, he became increasingly agitated and repeatedly said “I’ve fucked up, I’ve fucked up.”

22. An analysis of the accused’s blood revealed an alcohol concentration of not less than 0.154 g per 100 mL of blood at the time of the incident.

23. At the trial, the prosecutor played the record of an interview between police and the accused that commenced at 7:07 pm on 11 February 2015, i.e. less than 24 hours after the incident. During the interview, the accused was calm, coherent and considered in his responses. There was no suggestion of any abnormality in his thinking or behaviour.

Elements of burglary — Count 1

24. The Crown had to prove each of the following legal elements beyond reasonable doubt:

(a) The accused voluntarily (wilfully, not involuntarily) entered (or remained in) a building.

(b) He intended (meant to) engage in that conduct.

(d) He intended (believed) or was reckless about whether the occupier gave permission (at least, he realised that there was a substantial risk that the occupier did not give permission and, in the circumstances known to the accused, it was unjustifiable for him to take the risk).

(e) When he entered (or remained in) the building, the accused intended (meant) to commit an offence that involved causing damage to property and that offence was punishable by imprisonment for at least five years (in this case, an offence against s 403(1) of the Criminal Code).

Element (a) — physical element of voluntary conduct — entering/remaining in a building

25. When considering whether conduct is voluntary, evidence of self-induced intoxication cannot be considered: Criminal Code s 15(5). The accused chose to consume alcohol on the evening of 10 February 2015; his intoxication was self-induced within the meaning of s 30 of the Criminal Code. Consequently, the voluntariness of his conduct must be assessed without considering the effect of alcohol upon his will.

26. Disregarding the effect of alcohol upon the will of the accused, it is plain that the accused voluntarily (deliberately) entered the building at 14–16 Brindabella Circuit.

27. Further, when the effect of alcohol upon the will of the accused is disregarded, it is clear that the accused intentionally remained inside the building (omitted to leave); he made a conscious decision that he would not leave the building because he wanted to deploy fire hydrants.

28. I am satisfied that the conduct of the accused in entering and remaining in the building was voluntary.

Element (b) — fault element — intending the conduct of entering/remaining

29. The accused could have run from the building but, as he explained to police, he chose to remain there (he meant to remain there) for the purpose of signalling for help by activating the fire hydrants and thereby attracting attention. In other words, the voluntary conduct of entering and remaining in the building was accompanied by an intention to do so.

Element (c) — physical element — circumstance that the accused was a trespasser

30. It is plain from the circumstances (it was night time, the building was deserted, and the accused had no legitimate business with the occupier) that the occupier did not consent to the accused entering or remaining in the building. In any event, the police statement of a manager from the Canberra Airport Group confirmed that at no time was the accused given permission to enter or remain in the building.

Element (d) — fault element — the accused believed that he was a trespasser or was reckless

31. Given the circumstances in which he entered the building, the accused must have believed that he lacked permission of the occupier to do so.

32. I am satisfied that, at the very least, the accused was reckless about whether the occupier permitted him to enter the premises in that he realised that there was a substantial risk that the occupier did not give permission and, in the circumstances known to the accused, it was unjustifiable to take the risk. As a matter of fact, I find that the existence of fear about being chased, and a belief that assistance was required, did not justify the accused remaining on the premises.

Element (e) — intention to commit the offence of intentionally or recklessly damaging property

33. A person commits the offence of intentionally or recklessly damaging property if:

(a) The person voluntarily engages in conduct.

(b) The person intends (means) to engage in the conduct.

(d) At the time of the conduct, the person intends to cause damage (means to bring it about or is aware that it will happen in the ordinary course), or is reckless about causing such damage (is aware of substantial risk that the result will happen and, having regard to the circumstances known to the person, it is unjustifiable to take the risk).

34. The accused stated that, when he remained in the building, his intention was to activate high flow fire hydrants for the purpose of attracting attention to the fact that he was being chased. In other words, the accused intended to activate the fire hydrants. The facts established that, by his voluntary (willed) conduct (ignoring self-induced intoxication), the accused gave effect to that intent.

35. The agreed facts established that the voluntary conduct of the accused resulted in damage to the building (a smashed window and extensive water damage).

36. A person has intention in relation to a result if they mean to bring it about or are aware that the result will happen in the ordinary course of events: Criminal Code s 18(2). The accused must have been aware that, in the ordinary course of events, the activation of four high flow fire hydrants would cause extensive damage within the building. At the very least, he was aware of substantial risk that damage would be caused. In the circumstances known to the accused (even if it is assumed that the circumstances include “knowledge” that he was being chased) it was not justifiable to take the risk of causing extensive water damage; given the risk, the response was neither rational nor proportional.

37. I am satisfied beyond reasonable doubt that, when he remained in the building, the accused intended to engage in the conduct and to achieve the result necessary to constitute the offence of intentionally or recklessly causing damage to property belonging to someone else.

38. The offence of intentionally or recklessly causing damage to property belonging to someone else is an offence against s 403(1) of the Criminal Code, which is punishable by imprisonment for ten years.

Elements of recklessly causing damage to property - Counts 2, 3 and 4

39. In order to establish each such offence, the prosecution must prove each of four legal elements beyond reasonable doubt:

(a) The accused voluntarily engaged in conduct.

(b) The accused intended (meant) to engage in the conduct.

(d) The accused intended, or was reckless about whether, his conduct would cause damage to property (meant to cause damage, was aware that damage would happen in the ordinary course of events, or was aware that there was a substantial risk that damage would be caused and, having regard to the circumstances known to the person, it was unjustifiable to take the risk).

Element (a) — The accused voluntarily engaged in conduct.

40. As stated above, when considering whether conduct is voluntary, evidence of self-induced intoxication cannot be considered: Criminal Code s 15(5). The accused chose to consume alcohol on the evening of 10 February 2015; his intoxication was self-induced within the meaning of s 30 of the Criminal Code. Consequently, the voluntariness of his conduct must be assessed without considering the effect of alcohol upon his will.

41. In relation to each relevant act (activating the high flow fire hydrants and driving the utility vehicle into a ticket machine), when self-induced intoxication is disregarded, it is clear that the act was voluntary, rather than involuntary. The accused conceded that this element was satisfied in relation to each of Counts 2, 3 and 4.

Element (b) — The accused intended to engage in the conduct.

42. I am satisfied that the accused intended (meant) to engage in the conduct of activating the four high flow fire hydrants. That was the purpose for which he remained in the building.

43. I am satisfied that the accused intended (meant) to engage in the conduct of driving the utility into the ticket machine. It was not an isolated and accidental act; it was the final event in a trail of destruction using the utility vehicle, during which the accused drove the vehicle into other objects including metal bollards. The accused had managed to drive from Queanbeyan to Canberra Airport without apparent incident. I dismiss as unreasonable the possibility that the conduct was accidental.

Element (c) — The conduct caused damage to property belonged to someone else.

44. I am satisfied that the conduct of activating the fire hydrants caused extensive damage to property within the building that was owned by Canberra Airport.

45. I am satisfied that the conduct of driving the utility into the ticket machine caused damage to both to the ticket machine and the utility.

Element (d) — The accused intended or was reckless about whether his conduct would cause damage to property

46. A person has intention in relation to a result if they mean to bring it about or are aware that it will happen in the ordinary course of events: Criminal Code s 18(2). They are reckless about a result if they are aware of a substantial risk that the result will happen and, having regard to the circumstances known to the person, it is unjustifiable to take the risk: Criminal Code s 20.

47. In relation to the damage caused to the interior of the building, the accused must have been aware that such damage would ordinarily result from the activation of high flow fire hydrants. At the very least, he was reckless.

48. In relation to the damage caused to the ticket machine and utility, having observed the damage caused to other fixtures by the utility, he must have been aware that such damage would ordinarily result from driving into the ticket machine. At the very least, he was reckless.

49. As to each element that the prosecution is required to prove to establish each offence, I am satisfied that the prosecution has proved the element beyond reasonable doubt.

Defence of mental impairment

50. The accused sought to prove, on the balance of probabilities, that he was not criminally responsible because, at the time of carrying out the conduct required for the offences, he was suffering from a mental impairment.

51. The accused submitted that, at the time of the incident:

(a) He suffered from a “mental impairment”, being a “mental illness” (the “underlying pathological infirmity” of mild neurocognitive disorder and post-traumatic stress disorder) that “had the effect” that he did not know that his conduct was morally wrong and/or could not control it. Further, in the absence of the disorders (particularly the mild neurocognitive disorder), he would not have become psychotic and committed the conduct the subject of the proceedings.

(b) The condition was not a “reactive condition” “resulting from the reaction of a healthy mind to extraordinary external stimuli”; he did not have a “healthy mind” because he suffered from a mild neurocognitive disorder and post-traumatic stress disorder.

Expert evidence relating to the defence of mental impairment

Ms Walsh

52. In April 2013, Ms Walsh, a registered psychologist, examined the accused in relation to his fitness to maintain a firearms licence.

53. The impetus for the test was an incident on 19 March 2013. The accused had been feeling overwhelmed by work stress. After he had consumed a large quantity of rum, he had begun to hallucinate. Details of the ensuing incident emerged through other evidence (see below). Police were called and the accused was conveyed to hospital.

54. The accused told Ms Walsh that, when he was 29 years old (i.e. in about 1998), he had experienced “a similar situation”; he had hallucinated after binge drinking as a response to stress and a sense of failure associated with the collapse of his business.

55. Ms Walsh noted that, as at March 2013, the accused had been taking Arapax for anxiety and Bromocriptine for weight loss. Since the incident in March 2013, he had stopped taking Bromocriptine. She reported that hallucinations are a recognised side-effect of Bromocriptine and that alcohol enhanced the hallucinations. The accused told Ms Walsh that Arapax medication was effective in addressing his anxiety.

56. Ms Walsh performed three psychometric tests on the accused, each of which was in the nature of a personality test. Reportedly, the tests revealed nothing abnormal.

57. Ms Walsh concluded that, on 19 March 2013, the accused had experienced an “alcohol-induced psychotic disorder, with hallucinations, with onset during intoxication.” She considered that he had a high degree of insight into the effects of excessive alcohol consumption. She opined that it was “likely the reaction to alcohol was in part due to the Bromocriptine”, which the accused had since ceased. In answer to a question about whether there was a risk that the accused’s condition may impact upon his ability to exercise responsible control over firearms, Ms Walsh responded:

Mr Pahl reported an intention to restrict his alcohol intake. He reported that history would suggest he has the ability to sustain this behaviour. Mr Pahl advised he had not drunk any alcohol from November 2012 until the night of 19 March 2013, as he was attempting to lose weight. The risk of Mr Pahl repeating this behaviour is considered to be very low, based upon the reported history.

58. In answer to a question about danger to public safety, she responded:

Due to Mr Pahl’s awareness of the situation and the relationship between the medication and alcohol, it is considered unlikely that [his] condition will place the public at risk.

She also observed that the 2013 incident and the earlier incident when the accused was 29 years old had “enabled (Mr Pahl) to understand the impact binge drinking has on his behaviour and awareness.”

Dr McMahon

59. At the request of the defence, in April 2016 Dr John McMahon, a clinical psychologist with expertise in forensic neuropsychology, performed a neuropsychological assessment of the accused.

60. Dr McMahon obtained a medical history which included a report that, at six-and-a-half years of age, the accused had suffered encephalitis and had been hospitalised with hallucinations and a high temperature. As an adolescent, he had fallen from a bicycle, struck his head and suffered concussion but had received no treatment. At 14 years of age, a motorcycle accident had caused a head injury with concussion and deep vein thrombosis in the accused’s left calf, and he had spent a week in hospital.

61. The accused told Dr McMahon that he had been an anxious child who, for a period of one year, had been medicated for anxiety. The explanation for the anxiety is unclear from Dr McMahon’s report, which simply says that medication was prescribed when the accused left “a boy’s school with corporal punishment to [go to] the co-educational college.”

62. The accused also told Dr McMahon that, as an army conscript in South Africa, he had developed intense anxiety while doing night patrols. He had begun to have nightmares about being chased and thereafter the nightmares recurred when he was stressed. When exposed to civil unrest in South Africa in 1999, he had attempted suicide.

63. The accused told Dr McMahon that, after leaving school, he used to binge drink once every three or four months in response to stressors. In 2002, he stopped drinking alcohol to avoid the hallucinations that he experienced when intoxicated. He said that, in 2011, when suffering work stress, he had become intoxicated and aggressive, although this may refer to the incident which occurred in 2013; other evidence indicates that he had attended hospital with alcohol intoxication in March 2013. Dr McMahon understood that, after the 2011 (or 2013) incident, the accused had begun to take medication.

64. The accused told Dr McMahon that, after the February 2015 incident, he had consulted Dr Van der Merwe, who had developed a mental health care plan. The accused had undertaken five sessions of psychological therapy, which had helped his anxiety. Nevertheless, he often felt nervous and anxious. The MMPI Personality Test showed that the accused was very likely to be prone to depression and anxiety.

65. Dr McMahon noted that the accused “denied any psychotic symptoms when not intoxicated” and denied any manic symptoms.

66. Dr McMahon administered cognitive tests, which revealed that the accused had average pre-morbid (baseline) intellectual functioning, enjoyed average intelligence, and performed a variety of tasks within the average range. However, in relation to one of the executive functioning tests, the D-KEFS Colour-Word Interference Test (CWIT), on the inhibition/switching trial the results were in the impaired range (1^st percentile), consistent with poor speed of serial processing, poor inhibition, and weak mental set shifting.

67. Dr McMahon concluded:

In my opinion Mr Pahl meets DSM–V criteria for Post-Traumatic Stress Disorder with Depersonalisation with its origins in childhood exposure to violence and markedly aggravated by his service in the Army on a background of Avoidant and Dependent personality traits...

In my opinion Mr Pahl meets DSM–V criteria for a Mild NeurocognitiveDisorder Due to Multiple Etiologies including that there was impairment of cognitive inhibition caused by multiple head traumas as outlined in the medical history and possibly the encephalitis and pituitary gland disorder. (Emphasis in original)

In evidence, Dr McMahon adhered to this opinion.

68. In relation to the incident on 10 February 2015, Dr McMahon reported:

In my opinion when Mr Pahl ingested alcohol, on top of his other medication, his Mild Neurocognitive Disorder rendered him vulnerable to significant decompensation into a delirium given his impaired cognitive inhibition. Once delirious the mood congruent delusions reflecting his previous trauma exposure and underlying personality emerged and he was not able to inhibit his behaviour. He behaved in a way consistent with these delusions during the commission of the offences.... (Emphasis in original)

69. In evidence, Dr McMahon said that the mild neurocognitive disorder meant that the accused had less inhibition (control) in relation to his behaviour, including his drinking behaviour. Once he became psychotic, he experienced delusions of being chased and hiding, reflecting the themes of his post-traumatic stress disorder.

70. Dr McMahon opined that the accused had a “pathological infirmity” of the mind in that he had a mild cognitive neurocognitive disorder and post-traumatic stress disorder. He said that, but for the neurocognitive disorder, the accused would not have entered a delusional state.

71. Dr McMahon conceded that the day-to-day functioning of the accused was not significantly impaired by reason of the neurocognitive disorder. He agreed that the CWIT tests executive functioning. It was one of three tests designed to assess the accused’s executive functioning. In the other two tests, the accused performed in the above average range. Dr McMahon disagreed with Dr Langeluddecke’s opinion that test anxiety was a better explanation for the poor performance of the accused on the CWIT test, saying that high stress would not affect a test outcome “to that extent.”

72. Dr McMahon agreed that he was not an expert in alcohol-induced psychosis and that it was a rare condition. When the results of Ms Walsh’ tests were drawn to his attention, Dr McMahon said that they did not affect his opinion, observing that, given the purpose for which the tests were administered, the accused may have faked his performance.

73. Dr McMahon said that, because the accused had lost contact with reality during the February 2015 incident, he had been unable to reason about whether his conduct was morally wrong and unable to inhibit (control) it.

Dr Langeluddecke

74. Dr Langeluddecke reviewed Dr McMahon’s report on behalf of the prosecution and considered Ms Walsh’s report. She did not independently examine or test the accused.

75. She disputed Dr McMahon’s diagnoses of mild neurocognitive disorder and post-traumatic stress disorder.

76. In relation to the diagnosis of mild neurocognitive disorder, Dr Langeluddecke said that Dr McMahon’s test results did not satisfy the DSM–V diagnostic criteria for mild neurocognitive disorder; neither Criterion A nor Criterion D was satisfied.

77. Dr Langeluddecke observed that Criterion A (evidence of modest cognitive decline from a previous level of performance in one or more cognitive domains) was not supported (as required for a DSM-V diagnosis) by a modest impairment demonstrated on testing and concern of the individual, a knowledgeable informant, or the clinician, about a significant decline in cognitive function. The testing did not demonstrate modest impairment. Two of the three tests of executive functioning had yielded above average results and there was no pattern of impairment in the domain of executive functioning. In relation to the abnormal performance on the CWIT test, Dr Langeluddecke said that it was usual to find abnormal performance on some tests among people with high levels of anxiety and depressive symptoms. Further, there was no evidence of concern about declining cognitive function. To the contrary, the MMPI-2-RF Somatic/Cognitive and Internalising Scale results obtained by Dr McMahon showed that the accused was not particularly concerned that he had neurological or cognitive problems.

78. Dr Langeluddecke gave evidence that DSM–V Criterion D for mild neurocognitive disorder was also not satisfied (the cognitive defects are not better explained by another disorder). She said that the accused’s personality profile indicated depression, anxiety, and introversion/social withdrawal. The MMPI-2-RF findings indicated significant emotional distress at the time of cognitive testing. The CWIT test was particularly likely to inspire anxiety. It was well documented that anxiety could impact on cognitive functioning, particularly processing speed, attentional capacity, and cognitive inhibition. The CWIT test was mostly concerned with processing speed. She said that the accused’s poor performance on the CWIT test was better explained by test anxiety, rather than a neurocognitive disorder.

79. Dr Langeluddecke was not cross-examined on her assertion that the DSM–V criteria for mild neurocognitive disorder were not satisfied.

80. In Dr Langeluddecke’s opinion, there was no evidence of serious head trauma likely to place the accused at risk of cognitive impairment, nor was there evidence of cognitive sequelae flowing from illnesses or injuries. She observed that available medical reports provided no evidence of brain impairment and there was no history of cognitive impairment other than in the context of alcohol intoxication. She said that, where encephalitis has caused cognitive impairment, there is a very high likelihood that a defect will be apparent on an MRI scan. Similarly, if there is ongoing cognitive impairment caused by brain injury, it is usual to see a change on an MRI scan. However, the MRI results for the accused showed no such changes. Dr Langeluddecke did agree that, in the case of mild cognitive impairment, one would not necessarily see a change on an MRI. However, she concluded that, in the absence of MRI findings or other objective support for the theory that childhood illness or injury had caused a mild neurocognitive disorder, Dr McMahon’s theory was merely speculation.

81. Dr Langeluddecke also questioned Dr McMahon’s diagnosis of post-traumatic stress disorder with depersonalisation. She opined that other anxiety and/or mood disorders (either long-standing or reactive to current stressors such as the ongoing criminal proceedings) may explain the condition of the accused. She said that Ms Walsh’s tests would have revealed any anxiety, not just at the time when the testing was undertaken but longitudinally. As post-traumatic stress disorder was a type of anxiety, it was significant that Ms Walsh’s testing did not reveal chronic post-traumatic stress disorder. Dr Langeluddecke opined that, even if the accused was not anxious at the time of examination by Ms Walsh (for example, because he was being appropriately medicated), if he had chronic post-traumatic stress disorder, then it would have been evident to Ms Walsh in 2013. As no disorder was evident to Ms Walsh, the accused probably did not have such a disorder.

82. Dr Langeluddecke considered that the most appropriate diagnosis in relation to the 2015 behaviour was an alcohol-induced psychotic disorder. There was evidence that satisfied the DSM–V criteria for such a disorder. She found comfort for her views in Ms Walsh’s opinion that the 2013 incident was also an alcohol-induced psychotic episode.

83. Dr Langeluddeke said that alcohol-induced psychotic disorder was unusual but that some individuals did become psychotic when very intoxicated. She agreed that such individuals had an underlying infirmity which would not manifest itself unless they consumed alcohol.

84. Dr Langeluddeke agreed that, in a psychotic episode, a person may be unable to control their conduct.

Dr Allnutt

85. In October 2015, Dr Allnutt, a forensic psychiatrist, examined the accused on behalf of the defence. He reviewed the notes of the general practitioner who had treated the accused between 2010 and 2016 and the hospital notes concerning the 2013 incident.

86. He noted that, from 2012, the accused was medicated for anxiety. He observed that MRI scans in 2012 and 2016 reported normal results.

87. Unlike Dr McMahon, Dr Allnutt did not obtain a history of childhood exposure to violence. He obtained a history of childhood anxiety. Otherwise, he obtained a history that was similar to that taken by Dr McMahon. The accused told Dr Allnutt that he had been hospitalised for two weeks for encephalitis at six years of age and that, at that time, he had believed that Mickey Mouse had come to take him out.

88. Dr Allnutt obtained a detailed account of the 2013 incident. The accused told Dr Allnutt that, as a result of work stress, he had drunk a bottle of spirits. He had begun to sense that he was being chased. He had seen indistinct shadows in the periphery of his vision. He had felt a need to escape from his house. He had broken the laundry window and tried to climb a fence. He had tried to kick out fence panels. The police had been called and had calmed him down. He had been taken to hospital, observed overnight and released. His paranoid feelings had not persisted.

89. The hospital notes concerning the 2013 incident recorded that the accused had recently started taking Phentermine for weight loss. On 19 March 2013, after consuming alcohol, the accused had gone to work, where he became “manic”. He had picked up a fire extinguisher and sprayed the office in pink foam. He had returned home and was hallucinating. He had tried to escape his house by climbing the fence. When the police had arrived, he had been aggressive. As recorded by Dr Allnutt, the hospital notes concluded:

The impression was possible acute psychosis secondary to phentermine, combined with multiple stressors and alcohol, a possible personality disorder and sleep apnoea.

90. In relation to this diagnostic impression, Dr Allnutt noted that, in retrospect, a differential diagnosis was substance-induced psychosis and possible delirium. At page 12 of his report, he continued:

This history is consistent with a vulnerability to experiencing mental disturbance, probably psychosis, secondary to prescribed or legal substances, which manifests with behavioural disturbance.

91. The accused told Dr Allnutt that, following the 2013 incident, he had not drunk alcohol until January 2015. Since February 2015, he had not consumed alcohol and had experienced no psychotic symptoms.

92. Dr Allnutt reported:

...in interview with police the day after the alleged offence, [the accused] reported persecutory and paranoid thoughts that raise the diagnosis of an alcohol-induced psychosis or a confused mental state.

Alcohol-induced psychosis is a rare condition but is described in the literature and is an accepted condition. Often there is an underlying condition that make (sic) the person more vulnerable to the effects of alcohol.

Notably, on prior occasions in 2013 he was taking two medications (Bromocriptine and Phentermine) that could have induced psychosis, and would be more likely than alcohol intoxication to induce a psychosis in a vulnerable person. There is no evidence that he was taking these medications at the material time of the 2015 alleged offence.

Further:

Given a diagnosis of a mild neurocognitive disorder, depression and social phobia, he would be regarded as having a “mental impairment” at the material time that the alleged offence occurred, and not “mere intoxication”. Psychosis, disinhibition or delirium, induced by alcohol, was in my view a consequence of an internal vulnerability and thus did not result from the reaction of a healthy mind to alcohol or extraordinary external stimuli.

This statement by Dr Allnutt assumed that Dr McMahon’s finding of mild neurocognitive disorder was correct.

93. In evidence, Dr Allnutt said that 0.41 per cent of the general population experienced alcohol-induced psychosis. He said that, at the time of the incident, the accused was psychotic (experiencing delusions and hallucinations). The psychosis was alcohol- induced. As very few people become psychotic when they consume alcohol and as the accused had a history of alcohol-induced psychosis, it could be inferred that the accused had an underlying vulnerability to alcohol-induced psychosis, i.e. a biological vulnerability related to biochemical imbalance or neurological deficit. If present, a neurocognitive disorder may have been the source of the vulnerability. Further, the accused had an anxiety disorder (involving social phobia) which could have made him more susceptible to developing alcohol-induced psychosis. However, in relation to vulnerability to alcohol-induced psychosis, the existence of a mild neurocognitive disorder would be more significant than the existence of an anxiety disorder.

94. Dr Allnutt stated that the accused would have understood the nature and quality of his acts, but would not have been capable of reasoning with a moderate degree of sense and composure about whether his conduct, as seen by reasonable person, was wrong. Dr Allnutt found it difficult to give a firm opinion about whether the accused had been able to control his conduct.

Defence submissions about mental impairment

95. Having regard to the evidence of the expert witnesses, there was little if any dispute that:

(a) At the time of the incident, the accused was experiencing a psychotic episode, i.e. an episode that involved hallucinations (false sensory perceptions) and persecutory delusions (false beliefs).

(b) The psychotic episode was triggered by the ingestion of alcohol.

(d) Because of the psychosis that he was experiencing at the time of the incident, the accused did not know that his conduct was morally wrong and/or could not control the conduct.

96. I accept that, at the time of the incident, the accused was experiencing a psychotic episode that had been triggered by the ingestion of alcohol. Further, I accept that the psychotic condition meant that the accused could not reason with a moderate degree of sense and composure about whether his conduct, as seen by the reasonable person, was morally wrong.

97. The defence abandoned a submission that a moderately large (but not extraordinary) quantity of ingested alcohol sufficient to return a blood alcohol level of 0.154 does not amount to “extraordinary external stimuli”.

98. In relation to mental impairment, the defence submitted:

(a) The mental impairment that absolved the accused of criminal responsibility for his conduct was not psychosis but mild neurocognitive disorder and post-traumatic stress disorder. These disorders (primarily the mild neurocognitive disorder) satisfied the Criminal Code definition of “mental illness” because they were “an underlying pathological infirmity of the mind” other than a “reactive condition”.

(b) The mental impairments of mild neurocognitive disorder and post-traumatic stress disorder “had the effect” that the accused did not know that his conduct was morally wrong because the mild neurocognitive disorder was a necessary precondition to the development of alcohol-induced psychosis; but for the underlying pathological infirmity of neurocognitive disorder, the ingestion of alcohol would not have led to psychosis. The psychotic episode could be described as “evidence of mental illness” within s 27(3) of the Criminal Code.

(c) Alternatively, if temporary psychosis was the relevant mental impairment, then that impairment was not “a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli” because the accused did not have a “healthy mind” when he ingested alcohol; he suffered from a mild neurocognitive disorder and a post-traumatic stress disorder that made him vulnerable to developing alcohol-induced psychosis.

99. These submissions required the accused to show on the balance of probabilities that:

(a) At the time of the incident, he was suffering from the “underlying pathological infirmity/s of the mind” of mild neurocognitive disorder and/or post-traumatic stress disorder.

(b) That mental impairment/s “had the effect” that the accused did not know that his conduct was wrong.

(c) Alternatively, if the effective mental impairment was temporary psychosis, that condition was not a “reactive condition”; it did not “(result) from the reaction of a healthy mind to extraordinary external stimuli”.

Statutory defence of mental impairment

100. The Criminal Code provides:

27 Definition—mental impairment

In this Act:

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

In this section:

mental illnessis an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.

However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

28 Mental impairment and criminal responsibility

(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

(3) The question whether a person was suffering from a mental impairment is a question of fact.

(4) A person is presumed not to have been suffering from a mental impairment.

(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.

...

29 Mental impairment and other defences

(1) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility.

(2) If the trier of fact is satisfied that a person carried out conduct because of a delusion caused by a mental impairment, the delusion itself cannot be relied on as a defence, but the person may rely on the mental impairment to deny criminal responsibility.

Background to the statutory defence of mental impairment

101. Chapter 14 of the Legislation Act 2001 (ACT) (Legislation Act) provides guidance on statutory interpretation, but it is not intended to be a comprehensive statement of the law of statutory interpretation. It assumes that common law presumptions operate in conjunction with the chapter: s 137.

102. Key principles of interpretation are set out in Part 14.2 of the Legislation Act. In working out the meaning of unclear legislation, the interpretation that would best achieve the legislative purpose is to be preferred to any other interpretation: s 139. Particular provisions must be read in the context of the entire statute: s 140. Certain extraneous material may be considered: ss 141, 142 and 143. These provisions reflect the approach to statutory interpretation described by the majority in Project Blue Sky Inc v Australian Broadcasting Commission [1998] HCA 28; 194 CLR 355 at [78].

103. In R v Barlow (1997) 188 CLR 1 at 32, Kirby J remarked that, in cases of ambiguity, the High Court ordinarily favours a statutory interpretation that achieves consistency both across Australian codes and between Australian jurisdictions and other common law jurisdictions. His Honour emphasised the desirability of achieving uniformity in basic criminal law principles throughout Australia.

104. Although ss 27 and 28 of the Criminal Code are expressed slightly differently to s 7 of the Criminal Code Act 1995 (Cth) (Commonwealth Code), the provisions are very similar. Consequently, an understanding of the mental impairment defence in the Criminal Code may be informed by appreciating the background to the equivalent part of the Commonwealth Code.

105. The Commonwealth Code is based on recommendations of the Model Criminal Code Officers Committee (MCCOC), which was tasked to prepare a uniform criminal code for all Australian jurisdictions. In 1992, the MCCOC published a report recommending model criminal code provisions in relation to general principles of criminal responsibility. Those recommendations were substantially enacted as Chapter 2 of the Commonwealth Code. Section 7 of the Commonwealth Code contains the defence of mental impairment.

106. In its final 1992 report, the MCCOC decided that the basis of the mental impairment defence should be the 1843 M’Naghten Rules, which clarified the traditional common law defence of insanity (at p 35 [302]). The 1843 M’Naghten Rules focused on an offender’s inability, due to a “defect of reason” caused by “disease of the mind”, to recognise the “nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

107. Historically, the defence of insanity was premised on two principles: an offender should be absolved of criminal responsibility for an offence if they were incapable of forming the requisite criminal intention, while the community should be protected from the risk of recurrent behaviour. Following R v Hadfield (1800) 27 St Tr 1281, legislation was introduced to provide community protection; it directed courts to order the indefinite detention in a gaol or asylum of a person found not guilty by reason of insanity.

108. The modern defence of mental impairment continues to be informed by these principles. As Johnson J said in R v Fang (No 3) [2017] NSWSC 28 at [66] (Fang)(citing Attorney General of NSW v X [2013] NSWSC 1392 at [87]-[91):

When a special verdict of not guilty by reason of mental illness is returned, the accused person is not legally to blame for his or her actions and any order under [the Act] is not made by way of punishment, but to protect the community (and its members) and the accused person.

109. At p 93 [7.3.140], Odgers, Principles of Federal Criminal Law, notes that the definition of “mental illness” in s 7.3(9) adopts a common law formula derived from the judgment of King CJ in R v Radford (1985) 42 SASR 266; 20 A Crim R 388 (Radford). In Radford, King CJ considered the relationship between involuntary conduct (resulting from non-insane automatism) and insanity, and the manner in which that relationship was to be resolved in the practical administration of justice. At 274, his Honour said:

In one sense automatism must always involve some disorder or disturbance of the mental faculties, but I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as a disease of the mind as that expression is used in the M’Naghten Rules. As Lord Denning pointed out in Bratty v Attorney-General for Northern Ireland, the major mental diseases or psychoses such as schizophrenia are clearly diseases of the mind. Moreover, physical diseases... when they affect the soundness of the mental faculties should be regarded as diseases of the mind.... Disease of the mind is to be distinguished from “mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self control, and impulsiveness”: The Queen v Porter. The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called “defect of reason” in the M’Naghten Rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. (Emphasis added)

110. At 276, his Honour said:

The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand.

111. In both passages, his Honour distinguished between the reaction of a sound or healthy mind to external stimuli (which may enliven a defence of non-insane automatism) and the reaction of an unsound mind to internal or external stimuli (which may enliven a defence of mental impairment).

112. In R v Falconer [1990] HCA 49; 171 CLR 30 (Falconer), the accused had shot her husband while allegedly in a dissociative state caused by psychological trauma. Under s 23 the Criminal Code Compilation Act 1913 (WA), a person was not criminally responsible for an act done “independently of the exercise of his will” (non-insane automatism, leading to outright acquittal). Under s 27 of the Code, a person was not criminally responsible for an act done when they were “in such a state of mental disease” as to be unable to understand or control what they were doing (mental impairment). The Court held that psychological trauma that causes a dissociative state may amount to non-insane automatism under s 23.

113. Mason CJ, Brennan and McHugh JJ considered that a mental malfunction could only be s 23 non-insane automatism if it was transient, caused by physical or psychological trauma to which an ordinary person would likely succumb and it was not prone to recur. Referring to the above passage in Radford, in Falconer at 54 their Honours said:

... a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification is a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity. Subject to that qualification, the law is as stated by King CJ in the passage cited... (Emphasis added)

I will refer to this qualification as the “Falconer qualification”.

114. In Falconer at 55, their Honours said:

The problem of classification in the case of a transient malfunction of the mind precipitated by psychological trauma lies in the difficulty in choosing between the reciprocal factors – the trauma and the natural susceptibility of the mind to affection by psychological trauma – as the cause of the malfunction. Is one factor or the other the cause or both to be treated as causes? To answer this problem, the law must postulate a standard of mental strength which, in the face of a given level of psychological trauma, is capable of protecting the mind from malfunction to the extent prescribed in the respective definitions of insanity. That standard must be the standard of the ordinary person: if the mind’s strength is below that standard, the mind is infirm; if it is of or above that standard, the mind is sound or sane.

115. At 84–85, Gaudron J said:

The distinction has sometimes been expressed in terms of mental states having an external cause and those that proceed from internal causes. Sometimes the distinction has been expressed by reference to the transient or recurring nature of the particular mental state. In general terms, a recurring state which involves some abnormality will indicate a mind that is diseased or infirm, but the fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons (as, for example and relevant to the issue of in voluntariness, a state of mind resulting from a blow to the head) and those which are never experienced by or encountered in normal persons. (Citations omitted)

116. In Radford and Falconer, the courts distinguished between the defence of non-insane automatism (relevant where conduct is caused by the impact of an external event on an otherwise “healthy” mind) and the defence of mental impairment (relevant where conduct is the product of an underlying mental abnormality).

117. Unfortunately, this neat theoretical distinction sits uncomfortably with contemporary understanding of mental functioning. For example, whereas an external physical trauma, such as a blow to the head, may have similar behavioural consequences for different people, if abnormal behaviour flows from psychological trauma it is often difficult to say whether the behaviour results from a pre-existing mental condition (or mental vulnerability to development of the condition) or from the impact of the external trauma on a reasonably normal mind.

118. Similarly, alcohol and other intoxicating substances may result in a range of behaviours. However, it is common experience that a particular type of behavioural response tends to be repeated whenever a particular individual is intoxicated by particular substance to a particular degree. Sometimes, that behaviour is psychotic. If not all individuals become psychotic in the same circumstances, then logic suggests that those who do become psychotic must have an underlying mental vulnerability to developing psychosis when intoxicated. In that sense, it could be said that they have an underlying pathological infirmity of the mind. But does such an underlying pathological infirmity of the mind give rise to a defence of mental impairment?

119. The common law, the Criminal Code, the Commonwealth Code and other Australian criminal codes are concerned to attach criminal responsibility to offending conduct that results from self-induced intoxication. When speaking of the defence of mental impairment at the time that he introduced the Criminal Code, the Chief Minister said:

This is not analogous to a person who get drunk or stoned and as a result of the intoxication loses inhibition or loses control and commits an offence...

This is about a person who comes to the court with a diagnosed, provable mental impairment, somebody who lives with the condition over which they have no control and who says, “As a result of this impairment, this condition, I cannot control my conduct in certain circumstances, and my conduct may lead me to commit an offence.”

(Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 10 December 2002, 4132)

120. Again, in the real world there is often no neat distinction between people who choose to become intoxicated and those who have a “provable mental impairment… over which they have no control”; the interplay between mental illness and substance abuse is often complex. Many people with a substance abuse disorder have a dual diagnosis; their second diagnosis is a mental illness, often a psychosis. It may be very difficult to determine whether substance abuse has caused an episode of psychotic behaviour, whether substance abuse has exacerbated an existing psychosis to produce floridly psychotic behaviour, or whether a mental condition has made it more likely that the person will abuse substances because of an associated irrational belief, such as the belief that the substance will alleviate the condition.

121. Common sense suggests that mental state following the withdrawal of substances may provide some information about cause and effect. Evidence about the impact of withdrawal of substances on mental state has often been utilised to determine whether the defence of mental impairment is established in cases involving substance use.

Cases concerning mental impairment in the context of substance use

122. In R v Derbin [2000] NSWCCA 361 (Derbin), the accused had experienced underlying schizophrenia for some years. On the night in question, he suffered an acute exacerbation of psychosis after consuming a cocktail of alcohol and drugs. The Court was satisfied that the defence of mental illness was made out, stating that, if a person had a disease of the mind predisposing them to a particular condition, then it did not matter whether the “trigger” was alcohol or a set of surrounding circumstances: at [73] (citing R v Meddings [1966] VR 306). Derbin was applied in R v Dargin [2008] NSWSC 751. A similar approach was taken in R v Ham [2009] NSWSC 296.

123. In R v Morrison [2006] SASC 344, Duggan J considered whether a non-psychotic mental illness such as depression could constitute an underlying mental impairment where a person experienced a drug-induced psychosis. At [78]–[81], his Honour said:

I have reached the firm conclusion that any such illness was not the cause of the psychotic behaviour exhibited by the accused at the time of the alleged offences…

I accept that it is important to keep in mind the question of whether the taking of the drug enlivened an underlying mental illness. However, the crucial evidence in examining this causative issue is the steady and relatively rapid recession of the psychotic symptoms as the effects of the drug wore off. (Emphasis added)

124. Applying the common law as explained in Radford, in R v Martin (No 1) [2005] VSC 518; 159 A Crim R 314, Bongiorno J considered a statutory provision enacting the M’Naghten Rules. In that case, the accused’s delusional states were always preceded by the taking of cannabis and ceased when drug use ceased. His Honour found that a cannabis-induced psychosis was not a “disease of the mind”. Rather, it was a temporary disorder or disturbance of an otherwise healthy mind caused by external factors, i.e. the ingestion of cannabis. Although the accused was prone to experience psychotic symptoms when he used cannabis (it was not a unique event), his Honour did not consider the Falconer qualification.

125. In Bouchard-Lebrun v The Queen [2011] 3 RSC 575 (Bouchard-Lebrun) at [85], the Canadian Supreme Court considered the defence of mental impairment under s 16 of the Canadian Criminal Code 1985. The defence applied where a person had a “mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”’. However, in Cooper v The Queen [1980] 1 SCR 1149 it had been decided that the defence did not apply to “self-induced states caused by alcohol or drugs”. In Bouchard-Lebrun, the appellant had been incapable of distinguishing right from wrong because he had a drug-induced psychosis at the time when he perpetrated a vicious assault. He had experienced only one episode of toxic psychosis as a result of self-induced intoxication.

126. In considering whether the mental state of the accused was a mental disorder or “disease of the mind” in the legal sense, at [71] LeBel J identified the importance of considering the “internal cause factor” by comparing the reaction of the accused with that of a normal person who had consumed the same substances in the same circumstances. The evidence showed that toxic psychosis was a fairly frequent phenomenon associated with the ingestion of drugs: at [79]. At [81], his Honour noted that the rapid appearance of psychotic symptoms after ingesting the drug and their rapid diminution after ceasing to take the drug (paralleling the duration of intoxication), indicated that the accused’s psychotic symptoms could be attributed to the external factor of drug ingestion. His Honour observed that s 16 was not intended to apply to accused persons whose temporary madness was induced artificially by intoxication. His Honour held that a malfunctioning mind that resulted exclusively from self-induced intoxication was not a “disease of the mind” in the legal sense because it was “not a product of the individual’s inherent psychological makeup” but rather “a symptom, albeit an extreme one, of the accused’s state of self-induced intoxication”: at [85].

127. In R v Konidaris [2014] VSC 89, there was a dispute between the experts about whether, at the time of the incident, the accused had been suffering from paranoid schizophrenia or from a drug-induced psychosis. T Forrest J considered a statutory provision that codified the common law defence of insanity. The accused had been a heavy drug user. However, based on the promodal (early) symptoms of psychosis that had been observed by the accused’s family in the months preceding the incident and the persistence of delusional beliefs, his Honour was positively satisfied that, at the time of the incident, the mental state of the accused was due to paranoid schizophrenia.

128. In R v Doolan [2010] NSWSC 147, the accused had suffered a number of episodes of drug-induced psychosis that had made her vulnerable to further psychosis and caused an underlying condition independent of the effects of drug taking. In the period prior to when she killed the victim, the accused had been affected by prohibited drugs. The trial judge found that, quite apart from the effects of drugs, on the day of the incident the accused had been unable to reason with a moderate degree of composure because of mental illness: [134]–[136].

129. The above authorities were recently reviewed by Johnson J in Fang. At [90], his Honour said of the decisions in Derbin and Dargin:

The important feature in cases such as R v Derbin and R v Dargin is that what is required is a pre-existing “disease of the mind” (such as schizophrenia). That condition may be triggered by drug or alcohol use, but those features do not give rise to a “disease of the mind” unless there is also a psychiatric illness. (Citations omitted)

At [94], his Honour concluded:

I am satisfied that authority in New South Wales supports the position that a drug-induced psychosis (or intoxication by alcohol or drugs) does not constitute a “disease of the mind” unless there is also a separate psychiatric illness which is operative at the time of the act giving rise to the charge.

130. In Fang, the accused had killed the victim when he was in a drug-induced psychosis caused by using “Ice” over some months and using it heavily on the night of the killing. The psychiatrists who gave evidence accepted that final ingestion of “Ice” was very important to the accused’s mental state at the time of the killing: at [32].

131. Johnson J declined to leave the defence of mental illness to the jury both because there was no evidence of a “disease of the mind” and because the operative cause of the accused’s psychotic state was the voluntary ingestion of drugs. His Honour noted that the accused had no personal history of mental illness and that his psychotic condition resolved “spontaneously” after he ceased using “ice”. At [109], his Honour said:

This is not a case where there is evidence of an underlying existing mental illness in the Accused, which was triggered or exacerbated by his use of “Ice”. It may be distinguished from a number of cases in Victoria and New Wales, to which reference has been made, where there was a pre-existing mental illness which was accompanied by drug use leading to a drug induced psychosis.

132. In relation to the operative cause of the psychotic condition at the relevant time, at [111], his Honour found:

Even if his condition prior to that ingestion could be characterised as a “disease of the mind” (which I do not accept), what affected the Accused significantly was the actual use of “Ice” before the killing. But for the use of “Ice” before the killing, the medical evidence suggests that the Accused would not have experienced a drug induced psychosis at the time when the killing occurred.

133. Applying these considerations, in relation to the statutory defence under the Criminal Code I conclude that:

(a) A mental impairment absolves a person from criminal responsibility only if that mental impairment “had the effect” that the person did not know the nature and quality of their conduct, did not know that the conduct was wrong, or could not control it, i.e. only if that mental impairment was the “operative cause” of the misconduct.

(b) Most people are vulnerable to developing psychological conditions of one sort or another. The mere fact that a person is more psychologically vulnerable than others to developing a condition when exposed to an external stimulus does not mean that they lack a relevantly healthy mind. Nor does it mean that, if they choose to consume substances and then experience an adverse reaction, they should be absolved from criminal responsibility. Many people who have a psychological condition (for example, depression or anxiety) which makes them somewhat more vulnerable to external stimuli (including substances) operate quite normally within the community. For the purposes of the defence of mental impairment, generally these people can be considered to have a healthy mind. They have a reasonable level of psychological resilience and fall within the wide spectrum of psychological normality or “health” that means that they are not mentally impaired for the purposes of the criminal law.

(c) On the other hand, some people have a more serious condition, such as a psychosis, which significantly impacts upon their ability to operate normally within the community. Such a condition may be chronic and may become florid either spontaneously or when triggered by an external stimulus, including substance use. These people do not have a relevantly healthy mind. If their serious chronic condition becomes florid when triggered by substance use, the resulting florid condition is not a “reactive condition” but a manifestation or temporary aggravation of the underlying chronic condition.

(d) If a condition is “prone to recur” when a person is exposed to external stimuli of one sort or another, then under s 27(3) of the Criminal Code, the tendency to recurrence may provide evidence of mental illness, but does not necessarily establish that the person has a mental illness. It may be some evidence of an underlying chronic condition such as a psychosis. Section 27(3) goes some way to addressing the problems associated with universal application of the “Falconer qualification”. Not every person whose abnormal mental condition is “prone to recur” should be considered to be mentally impaired.

(e) In cases concerning substance related psychotic behaviour and the defence of mental impairment, it is useful to consider whether there is evidence of a pre-existing chronic psychotic condition (in which case, the defence may be available even if a florid psychotic episode has been triggered by substance use). It is also useful to consider whether psychotic symptoms persisted when intoxication wore off, or rapidly receded as intoxication wore off. The rapid receding of symptoms suggests that there was no underlying chronic condition and/or that the operative cause of the psychotic symptoms was the substance use, rather than any underlying chronic condition.

(f) The purpose of the defence of mental impairment (community protection from the actions of those who are not morally blameworthy) is not readily applicable where an accused poses a community risk only when they make an informed choice to consume a large quantity of alcohol knowing that it is likely to result in bizarre behaviour.

134. With these considerations in mind, I address the issues raised by the defence in this case.

Was the accused suffering from a mild neurocognitive disorder or other relevant pathological infirmity?

135. The accused did not argue that, at the time of the conduct, the relevant underlying pathological infirmity of the mind from which he suffered was chronic psychosis. Rather, he submitted that the underlying pathological infirmity was mild neurocognitive disorder and/ or post-traumatic stress disorder and that they were relevant mental impairments because they made him vulnerable to developing psychosis when he ingested alcohol.

136. This submission fails for several reasons.

137. First, if the accused suffered from a post-traumatic stress disorder, that condition was a reactive condition (the reaction of a healthy mind to extraordinary external stimuli) and therefore a condition that could not support the defence.

138. Second, there was no expert support for the proposition that post-traumatic stress disorder rendered the accused susceptible to alcohol-induced psychosis. Even Dr McMahon said that it was the mild neurocognitive disorder that rendered the accused vulnerable to psychosis; the traumas that caused the post-traumatic stress disorder merely informed the content of the psychotic episode.

139. Third, and more importantly, I am not satisfied on the balance of probabilities that the accused suffered from a mild neurocognitive disorder. I accept Dr Langeluddecke’s opinion that the test results obtained by Dr McMahon did not satisfy the DSM-V criteria for mild neurocognitive disorder. There was no reliable evidence of cognitive decline and the one test result upon which Dr McMahon based his opinion (the CWIT result) was both inconsistent with the results of other tests of executive functioning and better explained by test anxiety. In the absence of objective evidence of serious head trauma likely to have caused cognitive impairment, Dr McMahon’s opinions that impairment could have been caused by encephalitis or a head injury were mere speculation. Further, the evidence about the accused’s capacity to perform at a high level in his workplace was inconsistent with the view that he was impaired in the area of executive functioning.

What was the “mental impairment that had the effect” that the accused did not know that his conduct was wrong?

140. The accused submitted that the mental impairment of mild neurocognitive disorder absolved him from criminal responsibility because of the operation of s 28 of the Criminal Code.

141. The submission relied on the evidence of Dr McMahon that the accused suffered from a mild neurocognitive disorder and post-traumatic stress disorder that resulted in impaired cognitive inhibition and made him vulnerable to significant decompensation and delirium. The submission also relied on the evidence of Dr Allnutt, who said that, as very few people become psychotic when they consume alcohol, it could be inferred that the accused had an underlying biological vulnerability to alcohol-induced psychosis. Dr Allnutt said that any neurocognitive disorder from which the accused suffered may have made him vulnerable to alcohol-induced psychosis. The existence of an anxiety disorder (including post-traumatic stress disorder) would have been less significant than any mild neurocognitive disorder.

142. For the reasons already stated, I am not satisfied on the balance of probabilities that the accused suffered from mild neurocognitive disorder. I consider that any post-traumatic stress disorder from which the accused suffered was a “reactive condition” which cannot support the defence of mental impairment.

143. However, even if the accused did suffer from a mild neurocognitive disorder, I am not satisfied on the balance of probabilities that the disorder provided a defence under s 28 of the Criminal Code.

144. The defence of mental impairment requires proof that an underlying pathological infirmity “had the effect” that the accused did not know the nature and quality of their conduct, did not know that it was wrong, or could not control it; i.e., a mental impairment that directly or operatively inhibited the accused’s thinking in one of the three ways set out in s 28(1).

145. The experts in this trial agreed that, at the time of the incident, the accused was acutely psychotic. He was hallucinating. He experienced severe persecutory delusions and believed that a group of people was chasing him. The accused had a very limited memory of what had occurred during the period when he was behaving bizarrely, crashing the utility vehicle into bollards and ticket machines at the airport carpark, and releasing the fire hydrants in an irrational attempt to summons help. Interestingly, the content of the hallucinations and delusions and the accused’s response to those delusions paralleled his reported behaviour during the 2013 alcohol-induced psychotic episode.

146. The accused failed to appreciate that his conduct was wrong because he was temporarily psychotic. Any mild neurocognitive disorder was, at most, a background feature. It was not the direct or operative cause of the accused’s behaviour.

147. Further, there was no evidence that the accused suffered from a chronic psychotic condition. Both before and after the offence incident, when the accused was not intoxicated his behaviour was quite normal and there was no indication of a chronic underlying psychosis.

Was the psychotic episode a “reactive condition”; did it “(result) from the reaction of a healthy mind to extraordinary external stimuli”?

148. In the alternative to the above submissions, the accused submitted that the acute psychotic episode was not excluded from the definition of mental impairment because it was not a “reactive condition”; it did not “[result] from the reaction of a healthy mind to extraordinary external stimuli”. The accused submitted that he did not have a “healthy mind” because he had a pre-existing, underlying, and chronic pathology of the mind (mild neurocognitive disorder and post-traumatic stress disorder).

149. This submission is not made out on the balance of probabilities.

150. First, for the reasons explained above, I am not satisfied on the balance of probabilities that the accused suffered from a mild neurocognitive disorder and any post-traumatic stress disorder cannot be taken into account because it was a “reactive condition”.

151. Second, in the context of deciding whether behaviour was a “reactive condition”, the concept of a “healthy mind” extends to people who have a wide range of cognitive capacity. It includes people who experience difficulties such as depression and anxiety which nevertheless do not preclude them from operating in a relatively normal way within society. A person who is psychologically vulnerable to react in a way in which many other normal people may not react but who generally operates in a relatively normal way within society has a relevantly healthy mind. If they engage in misconduct when experiencing an extreme “reactive condition”, they may be able to argue that their misconduct was involuntary.

152. In this case, the psychotic episode was a “reactive condition”. The accused operated at a high level within society. He had a family and was employed in a demanding job. He had a long history of normal social engagement right up to the day of the offence. Any mental difficulties that he experienced were well within the normal range. In that sense, he had a “healthy mind”. His psychotic behaviour at the relevant time “resulted” from the reaction of a relevantly healthy mind to the external stimulus of alcohol. This was not a case where alcohol “triggered” a florid episode of a chronic underlying condition. Historically and on the relevant occasion, the accused exhibited psychotic symptoms only when he was intoxicated. The symptoms rapidly receded when the effects of intoxication wore off.

153. Unfortunately for the accused, he cannot argue that his behaviour was involuntary because, to the extent that his conduct was involuntary, it was the product of self-induced intoxication.

Order

154. In relation to each count in the indictment I return a verdict of guilty.

I certify that the preceding one hundred and fifty-four [154] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell

Associate:

Date: 31 March 2017

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